Schechner v. Whirlpool Corporation
OPINION and ORDER Denying Plaintiffs' 47 Motion to Substitute Party; Denying 47 Motion to Withdraw. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
TOBY SCHECHNER, et al.,
Case No. 2:16-cv-12409
HONORABLE STEPHEN J. MURPHY, III
OPINION AND ORDER DENYING
PLAINTIFFS' MOTION TO SUBSTITUTE PARTY 
Plaintiffs filed a putative class action and alleged that Defendant Whirlpool
Corporation falsely advertised a self-cleaning technology featured in several of its ovens.
Plaintiffs now seek to substitute the putative "Michigan Subclass representative," or in the
alternative, leave to withdraw. The Court has reviewed the briefs and finds that a hearing
is unnecessary. See E.D. Mich. LR 7.1(f). For the reasons set forth below, the Court will
deny Plaintiffs' motion.
In June 2016, Plaintiffs filed their initial complaint; filing of an amended complaint
followed several months later. ECF 1, 5. During preliminary motion practice, the Court
issued its first scheduling order. ECF 21. And after the motions were resolved, the parties
filed a joint discovery plan; the Court then held a scheduling conference. ECF 32, 33. On
the recommendation of the parties, the Court issued a second scheduling order that
delayed the end of fact discovery by more than two months. Compare ECF 21 with ECF
In August 2017, the Court held a telephonic status conference at the request of the
parties. During the conference, the parties advised that they were disputing whether
Defendant could inspect the ovens that were at the heart of the litigation. Plaintiffs
expressed concerns about potential intrusion and the cost of having attorneys present. The
Court advised that the inspections seemed reasonable, and that conducting the inspections
around the times and places set for depositions could reduce costs.
A month later, the Court held a second telephonic conference at the parties' request.
ECF 40. It became clear during the call that the discovery issues had escalated, so the
Court appointed a discovery master. ECF 44. The discovery master then recommended
compelling the oven inspection of one of the Plaintiffs: Laura Bliss. The Court agreed with
the recommendation, and ordered the inspection. ECF 49. In the meantime, Plaintiffs
moved to substitute out or withdraw Bliss as the Michigan Subclass representative.
Plaintiffs seek replacement via an amendment to their complaint. ECF 47, PgID 1124.
Because Plaintiffs already amended their complaint once and Defendant does not consent
to a second amendment, Plaintiffs must obtain the Court's leave. Fed. R. Civ. P. 15(a)(2).
Courts are typically required to grant leave when justice so requires. Id.
Defendant contends that here, however, the Court should apply the good cause
standard under Federal Rule of Civil Procedure 16(b)(4). ECF 50, PgID 1279–80. Rule
16(b)(4) governs the modification of a scheduling order. The scheduling orders here
provide that "amendment of the pleadings shall occur only by Court order." ECF 21, 35.
Defendant argues that this language incorporated the deadline to amend offered in the
parties' joint discovery plan. ECF 50, PgID 1279 n.2. Defendant asserts that Plaintiffs'
request is therefore a modification of the scheduling order and consequently Rule 16(b)(4)
applies. The point is well taken, but the scheduling orders did not set or incorporate a
deadline for amendment—they articulated how the parties could proceed to amend their
pleadings. By seeking leave to amend their complaint, Plaintiffs are abiding by the
scheduling orders rather trying to amend them. Rule 16(b)(4) therefore does not govern,
and the Court will apply Rule 15(a)(2).
Although courts are generally liberal in permitting amendments, justice does not
require leave when there is evidence of undue delay, bad faith or dilatory motive, repeated
failure to cure, undue prejudice, or futility. Foman v. Davis, 371 U.S. 178, 182 (1962).
Granting leave to amend here would unduly delay the litigation. The Court has already
extended discovery once, and allowing a substitution will almost certainly require another
extension. Plaintiffs filed their motion with only six weeks left in discovery, and only three
weeks remained once the issues had been fully briefed. As evidenced by Plaintiffs' brief,
Bliss was substantially involved in the discovery to date, including document production,
responses to interrogatories, depositions, and the upcoming oven inspection. ECF 47, PgID
Substituting in a new Michigan Subclass representative will require all that discovery
to be repeated and there is still substantial pretrial litigation ahead: class certification
motions will be filed and dispositive motions are likely. Granting leave to amend will
therefore substantially delay the litigation. And the delay will prejudice Defendant because
it will need to duplicate certain discovery costs, possibly defend against new or different
claims late into litigation, and potentially have to adjust its strategy to defend against class
certification after already deposing most other witnesses.
Plaintiffs have not shown that the delay is warranted. In their motion, Plaintiffs
contend that Bliss "no longer wishes to participate because . . . [Defendant] has insisted
on a needless home inspection of her oven[.]" ECF 47, PgID 1117. By compelling the
inspection, the Court has already found that the inspection is not "needless." ECF 49. And
although litigation can be inconvenient, a plaintiff agrees to endure hardship when she
voluntarily files a lawsuit. Bliss may now find the inconvenience outweighs the potential
benefit, but that does not justify delaying the litigation. Furthermore, it is unclear whether
Bliss is even resolute in her opposition to the inspection. In the conclusion of Plaintiffs' reply
brief, they state that "Bliss is willing to permit [Defendant] to inspect her oven." ECF 51,
PgID 1360. If Bliss will now permit the inspection, then it would appear her initial opposition
does not warrant the delay that substitution would require.
In their reply brief, Plaintiffs disclosed for the first time that Bliss has medical reasons
that justify her substitution even though she is willing to permit the inspection and to appear
at trial by video conference. Although legitimate medical conditions would usually justify
delay, the delay here appears to be caused by a lack of communication between Plaintiffs'
counsel and Bliss rather than the medical condition itself. On September 25, 2017,
Plaintiffs' counsel represented to Defendant that they would "try speaking with Ms. Bliss
tomorrow about scheduling an inspection[.]" ECF 50-2, PgID 1326. The next day, Plaintiffs'
counsel stated "we can confirm the Bliss inspection on October 25th[.]" Id. at PgID 1325.
Plaintiffs state in their motion, however, that on October 4—more than a week after they
confirmed the inspection—counsel learned that "any forced inspection would result in
[Bliss's] decision to no longer participate in this case." ECF 47, PgID 1120. The timing
suggests that counsel inadequately communicated with Bliss when confirming the
inspection and the lack of communication resulted in a week delay to learn that the
inspection would be an issue; the ramifications of the delay are amplified because it
occurred near the end of discovery. Furthermore, Plaintiffs' counsel attests that they did not
learn of Bliss's ongoing health condition until November 9, 2017—three days after
Defendant filed its response and over a month after Bliss informed counsel that a forced
inspection would result in her decision to withdraw. Diligent communication would have
resulted in Plaintiffs learning of the alleged need for substitution sooner, and discovery
likely could have been conducted on the new Michigan Subclass representative without
delaying the litigation.
In sum, the Court finds that granting leave to amend would delay the litigation and that
the delay is unjustified. Justice therefore does not require the Court to grant Plaintiffs leave
under Civil Rule 15(a)(2).
In their original motion, Plaintiffs seek, in the alternative, leave for Bliss to withdraw
from the litigation. ECF 47, PgID 1126. In part of their reply brief, Plaintiffs ostensibly
maintain that position. ECF 51, PgID 1359. In the conclusion, however, Plaintiffs indicate
that Bliss is willing to permit the inspection and "has expressed her readiness and
willingness to continue to represent those class members who the Court deems to be
similarly situated to her"—although she would prefer to appear via video conference at trial.
Id. at PgID 1360. The Court will not compel a person with a legitimate medical condition to
continue with litigation, but is unclear whether and on what conditions Bliss seeks to
withdraw or dismiss her claims. The Court will therefore give her an opportunity to file a
clearer withdrawal after reflecting on whether she wants to continue.
WHEREFORE, it is hereby ORDERED that Plaintiffs' Motion to Substitute  is
IT IS FURTHER ORDERED that Plaintiffs may file, no later than 30 days after the
date of this order, a motion to dismiss Bliss's claims. If filed, the motion should state (1)
under which Federal Rule of Civil Procedure or other authority she seeks to dismiss her
claims, and (2) any conditions of the dismissal. Defendant shall have an opportunity to
respond in accordance with Eastern District of Michigan Local Rule 7.1(e).
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: November 21, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on November 21, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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